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Next step for same-sex marriage: The right to divorce

By David Crary and Holbrook Mohr, The Associated Press

Posted:
12/01/2013 04:03:09 PM MST

In this Nov. 5, 2013 photo, Dawn Jefferies, right, speaks in Hernando, Miss., about the efforts Lauren Beth Czekala-Chatham, left, has taken to get the state to recognize a same-sex marriage performed in California, so Czekala-Chatham can now divorce that partner she lived with as a couple in DeSoto County, until they separated in 2010. (Rogelio V. Solis/AP Photo)

HERNANDO, Miss. — Lauren Beth Czekala-Chatham wants to force Mississippi, one of the America's most conservative states, to recognize her same-sex marriage. She hopes to do so by getting a divorce.

She and Dana Ann Melancon traveled from Mississippi to San Francisco to get married in 2008. The wedding was all Czekala-Chatham hoped it would be, the Golden Gate Bridge in the background, dreams for a promising future. She wrote the vows herself.

The couple bought a house together in Walls, a town of about 1,100 in northern Mississippi's DeSoto County in June 2009. But the marriage was tumultuous and, like so many others, it didn't last.

Czekala-Chatham, a 51-year-old credit analyst and mother of two teenage sons from an earlier straight marriage, filed for divorce in chancery court in September. She wants to force Mississippi to recognize the same-sex marriage for the purpose of granting the divorce.

“It's humiliating to know that you spend that money, that time to be in a committed relationship and for it to end. I mean, that hurts. But then to be in a state that doesn't recognize you as a human being, or recognize you for who you are, for who you love, it's hard,” Czekala-Chatham said during an interview at her current home in Hernando. “I'm not treated like the neighbors next door. I'm treated like a second-class citizen.”

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She has plenty of company among gay and lesbian couples in other conservative states, although thus far only a few have pursued divorce cases in the courts.

Even as the number of states legalizing same-sex marriage will soon grow to 16, most states — like Mississippi — refuse to recognize such unions or to help dissolve them. Gay couples who move to those states after marrying elsewhere face roadblocks if they wish to divorce, as do couples from those states who make a brief foray out-of-state to get married.

Often, such couples in non-recognition states would have to move back to the state where they were married and establish residency in order to get divorced — an option that can be unworkable in many cases.

“The idea you can't go to your local courthouse and file for divorce is very disruptive,” said Peter Zupcofska, a Boston lawyer who has represented many gay and lesbian clients in marriage and divorce cases. “It's an enormous waste of effort and time.”

The right to divorce isn't as upbeat a topic as the right to marry, but gay-rights lawyers and activists say it's equally important.

“The marriage system is a way we recognize and protect the commitments people make to their partner,” said James Esseks, director of the Lesbian, Gay, Bisexual and Transgender Project at the American Civil Liberties Union.

“Part of that system is creating a predictable, regularized way of dealing with the reality that relationships sometimes end,” he said. “Those are the times people are the worst to each other, and that's why we have divorce courts. There's got to be an adult in the room.”

On a recent evening, in the one-story brick house she shares with her two children, a new girlfriend and several pets, Czekala-Chatham sat on the edge of a leather recliner, shaking her head.

“Why should I be treated differently, you know?” she said. “When the courthouse is a few blocks from here, I should be able to walk up there and get married. I should also be able to go up there and get divorced.”

She could get a divorce in California, but her lawyer argues that Mississippi wouldn't recognize the divorce and their marital property would remain “in limbo.”

Melancon's lawyer, Chad Reeves, filed a motion to dismiss the divorce complaint based on the argument that Mississippi can't grant a divorce for a marriage that it doesn't recognize. However, Reeves told The Associated Press on Friday that the motion was withdrawn after the parties signed an agreement related to division of property and debts.

Reeves said he opposed the divorce because Czekala-Chatham asked for alimony, among other things, but those matters have been settled. He said Melancon will get the house, and won't have to pay alimony. Czekala-Chatham says she doesn't care, she just wants the divorce.

A hearing is scheduled for Monday.

Melancon, who now lives in Arkansas, declined to be interviewed. She said in an email that she wants the divorce, but the “avenues to pursue are vague and expensive.” She did not elaborate.

The Mississippi Attorney General's office filed a motion to intervene on Nov. 15 that said the divorce petition should be dismissed.

Mississippi “has no obligation to give effect to California laws that are contrary to Mississippi's expressly stated public policy,” the motion argues. “That legitimate policy choice precludes recognition of other States' same sex marriages for any reason, including granting a divorce.”

Legal experts say getting Mississippi to recognize the marriage for any purpose is a longshot. Lawmakers amended state law in 1997 to say any same-sex marriage “is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.”

In 2004, 86 percent of Mississippi voters approved an amendment placing a ban on same-sex marriage in the state constitution.

In his arguments for a divorce, Czekala-Chatham's lawyer, Wesley Hisaw, cites a recent ruling by the U.S. Supreme Court that struck down parts of the federal Defense of Marriage Act and ordered the U.S. government to recognize legal same-sex marriages. That has created a situation where same-sex couples “are married lawfully under the laws of the United States, but not under Mississippi law,” Hisaw contends.

He also argues that bigamous and incestuous marriages are considered “void” in Mississippi, just like same-sex marriages, but bigamy and incest are also grounds for divorce.

“There can be no legitimate state purpose in allowing bigamous or incestuous couples to divorce and not allowing the same remedy to same-sex couples,” he wrote.

Right-to-divorce cases have cropped up in some other states with constitutional bans on same-sex marriage. On Nov. 5, the Texas Supreme Court heard arguments about whether the state can grant divorces to gay couples married elsewhere.

The plaintiffs are couples from Austin and Dallas who married in Massachusetts and later filed for divorce in Texas. The Austin couple was granted a divorce, but Attorney General Greg Abbott intervened in the Dallas case and won an appeals court decision blocking a divorce.

In the oral arguments, Assistant Attorney General James Blacklock argued there's no way for Texas to grant a divorce because of the constitutional ban.

“There's no marriage here,” he said. “So there can be no divorce.”

A similar case has just commenced in Kentucky, where two women married in Massachusetts are seeking a divorce.

At least one same-sex couple has been able to get a divorce in a state that doesn't officially recognize same-sex unions. In 2011, the Wyoming Supreme Court ruled that two women married in Canada could get a divorce in the state, reversing a ruling by a district judge.

While the issue of same-sex divorce has drawn increasing attention, there is little in the way of comprehensive data to help draw comparisons between the divorce rates of gay couples and heterosexual couples.

One of the few large-scale studies addressing the question was conducted by Michael Rosenfeld, a sociology professor at Stanford University. He assessed the breakup rates among about 3,000 couples since 2009, and concluded there was little difference between gay couples and straight couples.

Depending on a couple's circumstances, a host of weighty matters can be affected by the inability to divorce — division of property, child custody, health coverage for a spouse, the ability to get remarried. In some cases, the inability to divorce could mean that an estranged spouse would continue to receive spousal benefits even though the other partner wanted those benefits halted so he or she could move on to a new relationship.

“It's really problematic for people in getting on with their lives, being considered single again,” said Kenneth Upton Jr., an attorney in the Dallas office of Lambda Legal, a national gay-rights group.

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